Citation Nr: 0113127
Decision Date: 05/09/01 Archive Date: 05/15/01
DOCKET NO. 95-10 578 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to service connection for a back disorder,
claimed as herniated nucleus pulposus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from November 1966 until
October 1968.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans' Appeals (Board) from a January 1995
rating decision of the Newark, New Jersey Regional Office
(RO) which denied service connection for herniated disc,
among other claimed disorders.
During personal hearing on appeal in May 1995, the appellant
withdrew the issues of service connection for hypertension
and alcohol abuse. Service connection was granted for post
traumatic stress disorder rendering that issue moot. The
instant issue is the only one currently in appellate status.
REMAND
The veteran asserts that he now has a back disorder which was
incurred in service. He presented testimony upon personal
hearing in May 1995 to the effect that after coming under
attack one night in Vietnam, he dived head first into a
bunker and that another soldier seeking shelter jumped in
behind him feet first and landed square in his back. He
stated that he experienced a sharp back pain at that time but
"shook it off" and did not seek treatment. He said,
however, that from that time, he noticed twinges of pain, and
had recurring symptoms whenever he engaged in heavy work.
The appellant was of the opinion that this was the beginning
of his back problem.
A review of the record reveals that service medical records
are negative for any complaints or findings of a back
disorder. The Board notes, however, that in additional
testimony, the veteran related that he had had a back injury
at work which became exacerbated over the years. He stated
that he first sought treatment for back pain in approximately
1977 after an inability to get out of bed one day and went to
a chiropractor for three to four months. He said that a
herniated disc was diagnosed at that time. The veteran
testified that the next time he experienced incapacitating
symptomatology was the previous year [1994] at his job in the
Post Office, when his back suddenly went out. He related
that he went to a doctor who told him to take it easy, but
that back pain got worse and radiated down the left leg. He
said that he missed six months of work on account of back
pain, and that CAT scan had revealed four bad vertebrae, a
herniated disc and arthritis in his back at that time.
Private clinical records dated between February and March
1994 reflect that the veteran sought evaluation and treatment
for back pain of several months' duration subsequent to
unspecified injury. A CAT scan of the lumbosacral spine
revealed disc degeneration at multiple levels. The
appellant's private physician, H. M. Pecker, M.D., noted that
an X-ray disclosed degenerative changes of the lumbar spine.
It was felt that he was suffering from mechanical low back
pain and could require up to four months of back
rehabilitation.
The Board observes in this instance that current clinical
evidence of record relating to the back is remote from
service. As noted previously, however, the veteran indicated
upon personal hearing on appeal that he first sought
treatment for back pain around 1976 or 1977 from a
chiropractor. It does not appear that those records have
been requested or secured for review. The Board is of the
opinion that such information would be useful in ascertaining
the history of the veteran's back problem, and whether it
relates back to active service. As well, any subsequently
prepared clinical updates from clinicians whose records have
been included in the file might also be helpful in review of
the claim.
Additionally, the Board also notes that the appellant has
never had a VA examination for compensation and pension
purposes in this regard. Based in part on a new law as
discussed below, the fulfillment of VA's statutory duty to
assist the appellant also includes providing VA examination
when indicated, and conducting a thorough and contemporaneous
medical examination which takes into account the records of
prior medical treatment, so that the disability evaluation
will be a fully informed one. See Hyder v. Derwinski, 1
Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124
(1991).
Also, on November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
superceded the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA could not assist in the development of a claim
that was not well grounded. This change in the law is now
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000); see also Holliday v. Principi, No. 99-1788 (U.S. Vet.
App. Feb. 22, 2001).
In part because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-99 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). The change even
requires that notice be provided to a claimant as to what is
required for a claim to be successful, and may require
multiple notices during the pendency of the adjudication
process. See Holliday, slip op. at 12-13. In the case of
Holliday v. Principi, No. 99-1788 (U.S. Vet. App. Feb. 22,
2001), it was noted that the VA Secretary had not promulgated
implementing regulations, and that these regulations might in
fact provide more assistance than is required by the Veterans
Claims Assistance Act itself. Holliday, slip op. at 12.
Indeed, the Court noted that, until such regulations were
promulgated, there remained significant uncertainties
regarding the kind of notice to be given to each class of
claimants, especially in light of the Secretary's
acknowledgment that the notification requirements had
universal application. Holliday, slip op. at 13. In order
to ensure that the veteran in this case is afforded all the
protections of the Veterans Claims Assistance Act of 2000, as
implemented by VA, a remand is required.
On remand, the RO should undertake any action deemed
necessary to ensure that the requirements of the new law have
been satisfied. That action should include, among other
things, making an effort to obtain copies of any records
reflecting treatment rendered by the veteran's chiropractor
in 1976 or 1977, other medical attention he may have received
from VA, and any private physician, to include Dr. Pecker.
The action should also include affording the veteran another
examination. 38 C.F.R. § 19.9 (2000).
This case is thus REMANDED to the RO for the following
actions:
1. The RO must review the claims folder
and ensure that all notification and
development required by the Veterans
Claims Assistance Act of 2000, Pub. L.
No. 106-475, is completed. In
particular, the RO should ensure that
the new notification requirements and
development procedures, contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107), are
fully satisfied. Development should
include, among other things, making an
effort to obtain copies of any records
reflecting treatment the veteran may
have received his chiropractor in 1976
or 1977, and those from VA and any other
private physician, including Dr. Pecker.
The appellant's assistance in securing
these records should be solicited as
needed.
2. As part of the development
undertaken to comply with the new law,
the RO should arrange to have the
veteran undergo an orthopedic
examination of his back. All necessary
tests and studies should be performed,
and clinical manifestations should be
reported in detail. The claims folder
and a copy of this remand should be made
available to the examiner for review
prior to the evaluation. An opinion as
to etiology of any acquired back
pathology should be entered if possible
based on the examination of the
appellant and a review of all pertinent
evidence of record.
3. After all required notification and
development has been completed, the RO
should again take adjudicatory action on
the claim for service connection. If
the benefit sought is denied, a
supplemental statement of the case
should be issued.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review, if appropriate. No action is
required by the veteran until he receives further notice, but
he may furnish additional evidence and argument while the
case is in remand status. Kutscherousky v. West, 12 Vet.
App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995);
Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The
purpose of this remand is to procure clarifying data and to
comply with governing adjudicative procedures. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).